STATISTICAL MONITORING
AWI Act
Monitoring
2015/16
SEPTEMBER 2016
Contents
1. What we do .......................................................................................................... 1
2. An overview of the use of the Adults with Incapacity (Scotland) Act 2000 ........... 3
3. Geographic variations in the use of welfare guardianship ................................... 6
4. Age and diagnosis of people placed on guardianship........................................ 11
5. Duration of guardianship orders......................................................................... 15
6. Our visits to adults on guardianship 2015 - 2016 ............................................... 19
7. Adults with Incapacity (Scotland) Act 2000, 2015-2016, Section 48 (regulated
treatments) & Section 50 (disagreements with proxy). ............................................. 25
8. Report on a Survey of Private Welfare Guardians (2016).................................. 26
9. Policy developments affecting welfare guardianships........................................ 32
10. Appendix of tables ............................................................................................. 35
1. What we do
We protect and promote the human rights of people with mental health problems, learning
disabilities, dementia and related conditions.
We do this by
•
Checking if individual care and treatment is lawful and in line with good practice.
•
Empowering individuals and their carers through advice, guidance and information.
•
Promoting best practice in applying mental health and incapacity law.
•
Influencing legislation, policy and service development.
Welfare Guardianship
The Adults with Incapacity (Scotland) Act 2000 (the 2000 Act) introduced a system for
safeguarding the welfare and managing the finances and property of adults who lack capacity
to act or make some or all decisions for themselves, because of mental illness, learning
disability, dementia or other condition (or inability to communicate due to a physical
condition). It allows other people, called guardians or attorneys, to make decisions on behalf
of these adults, subject to safeguards.
When an adult has capacity, they can grant a power of attorney to act on their behalf, should
they become unable to make their own decisions.
When an adult no longer has capacity, an application is made to court, and the sheriff may
appoint a welfare guardian as a proxy decision maker. The welfare guardian is then involved
in making key decisions concerning the adult’s personal and medical care.
The majority of guardians are private individuals, usually a relative, carer or friend. These are
known as private guardians. The court can also appoint the chief social work officer (CSWO)
of a local authority to be the person’s welfare guardian, especially if private individuals do not
wish to take on the role of guardian. This is known as local authority guardianship.
Local authorities have a duty to make an application for welfare guardianship where it is
required and no-one else is applying.
Local authorities also have a duty under the Act to supervise all welfare guardians and to visit
the adult and their guardian at regular intervals.
1
The Mental Welfare Commission for Scotland (the Commission) has safeguarding duties in
relation to people who fall under the protection of the 2000 Act. We examine the use of
welfare guardianship for adults with a mental illness, learning disability or other related
conditions (including dementia), to determine how and for whom the 2000 Act is being used.
This helps us to inform policy and practice. It also assists local area management in reviewing
how and for whom Part 6 of the 2000 Act is being used in their area.
2
2. An overview of the use of the Adults with Incapacity (Scotland) Act
2000
The Mental Welfare Commission for Scotland is part of the framework of legal safeguards in
place to protect the rights of people on welfare guardianship, intervention orders, and powers
of attorney. We monitor the use of the welfare provisions of the Adults with Incapacity
(Scotland) Act 2000. We also monitor the use of Part 5 of the 2000 Act relating to consent to
medical treatment and research.
The Commission receives a copy of every application for welfare guardianship, including the
powers sought, medical and mental health officer (MHO) assessments, and a copy of the
order granted by the sheriff. We visit some people on guardianship, and provide advice and
good practice guidance on the operation of the 2000 Act. We investigate circumstances
where an adult with incapacity may be at risk. In doing so we might also involve local authority
colleagues.
Where we think an adult might require adult support and protection procedures we refer to
the local authority, whose duty it is to investigate such matters under the Adult Support &
Protection (Scotland) Act 2007.
Our main findings from our monitoring activities are:
•
•
•
•
•
The number of existing guardianship orders (10,735) has risen by 15% since 2014/15
(9,333).
The number of new welfare guardianship applications granted continues to rise. In
2015/16 there were 2,657 applications granted across Scotland (2,359 new orders
and 298 renewals). This represents an 8% increase this year and a 99% increase
since 2009/10.
Private applications accounted for 74% of all applications in 2015/16. This year, total
private applications have increased by 5% to 1,979, following last year’s increase of
15%, and representing a 117% increase since 2009/10. As in last year’s report, we
would highlight that this places local authorities under increased pressure to fulfil their
statutory duties to provide reports for applicants. Local authorities have no control over
this demand-led system.
Local authority applications accounted for 26% of all applications. These also
increased by 17% to 678, an overall 60% increase since 2009/10.
The Scotland rate for approved welfare guardianship applications has increased again
this year from 55 to 60 per 100,000 in the over 16 age group population. The highest
rates are in South Ayrshire (104 per 100K), Renfrewshire (97 per 100K), and East
Ayrshire (98 per 100K). Rates increased most in Dumfries and Galloway (93 per 100K,
+89%), and Clackmannanshire (76 per 100K, +68%).
3
•
•
Almost a fifth (19%, 506) of the welfare guardianships granted this year are from the
16-24 age group for learning disability. We assume that these figures are largely
related to the continued uptake of Self Directed Support.
Although the number of indefinite guardianship orders has decreased, there are 4,800
indefinite orders as of 31 March 2016, which represents 45% of the total extant orders
(10,735). We suggest that orders should be granted on a time-limited basis, especially
for young people where circumstances may change over a few years, or for adults
who may regain some areas of capacity e.g. alcohol related brain injury. Where an
order is indefinite, we strongly recommend particular attention is paid to periodic
reviews. This ensures that the adult still lacks capacity across the range of authorised
powers, that the measures remain necessary and that their use is meeting the adult's
needs. Such reviews are in-keeping with both the principles of the legislation and the
Code of Practice.
Our visits to adults on welfare guardianship
In 2015/16, we visited 472 adults on welfare guardianship. We continued to target our
guardianship visits more towards individuals where issues arose in relation to restraint,
deprivation of liberty or seclusion.
In 2015/16, of those adults on guardianship we visited, 42% (198) were resident in care
homes and 32% (153) in the family home. We saw a larger proportion in supported tenancies
this year (21%, 100) and 3% (13) were in hospital at the time of the visit.
We found that in almost all cases (93%, 437) both care and treatment and accommodation
were judged as being good or adequate.
Concerns were noted on 27% (128) of visits. In over half of these cases (60%, 77 of 128)
further ongoing casework was required by Commission visiting staff. We recorded 173
separate issues followed up as a result of these visits. Our main concerns were:
•
•
•
•
20% (40) of individuals in care homes did not have a life history available to staff.
In 6% (26) of cases, the principles of the 2000 Act did not appear to be being adhered
to; we followed these up and will continue to monitor and, in some cases, will visit
again.
In 10% (47) of all cases, there was no clear evidence that the guardian had visited the
adult in the last 6 months.
41% (130 of 319) of private guardians appeared to have had no recent supervisory
visits, and for many of these (64%, 83 of 130) there was no evidence that the adult
had been visited by the local authority supervisor in the past six months. Supervisory
visits by social work departments support guardians to properly use their powers in
line with the principles of the 2000 Act.
4
•
For 5% (23) of individuals, issues relating to Section 47 and medication were a cause
for concern requiring follow up; in other cases we provided advice to care staff
concerning GP responsibilities for completing or updating a S47 form and directed
them to the treatment plan template.
For 5% (22) of individuals, there were concerns about the appropriateness of the current
placement. For a further 3% (15), some reservations had been expressed by the individual
themselves, professional staff or the Commission visitor. Issues included inappropriate
accommodation and lack of support for individuals with mobility problems, and being
accommodated with a much older age group. We discussed this with the individual and care
managers, and followed up with reviewing teams where appropriate. We requested and
received follow-up reports.
Survey of private guardians 2016
This year we conducted a survey of 286 private welfare guardians who had been acting for
three years following their appointment in 2013. We received 90 responses. One of the
questions we asked was: "How did they find out about welfare guardianship?" We found that
46% had been told by social workers, 30% by a solicitor, and 12% by a relative/friend.
Healthcare professionals were rarely mentioned, and may need to be made more aware of
the Adults with Incapacity Act and the importance of sharing information about guardianship
with relatives.
Of the responses from private guardians, 68% told us they found being welfare guardians
helpful, while 28% said it had not made much difference. It was positive to learn that 92% of
guardians would advise others in the same situation to apply for welfare guardianship.
5
3. Geographic variations in the use of welfare guardianship
Our interest in this
Over the years, we have reported the variations in the use of guardianship from one local
authority area to another, and from one year to the next. While the reasons for differences
between local authorities are complex, local authority staff should review this data to help
ensure that the Act is being used where necessary in their area, both to safeguard the welfare
and property of adults with incapacity and to assist relatives and carers. Local authority
managers will also wish to examine trends that may have implications for workload
management and planning.
What we found
In 2015/16, there were 2,657 applications granted across Scotland - a further increase of 8%
for welfare guardianships granted. This represents a 99% increase since 2009/10.
While there was just over an 8% increase in applications granted across Scotland, there were
considerable variations across the country. Two mainland local authority areas saw increases
in approved orders of 50% or greater: Clackmannanshire 68% and Dumfries and Galloway
89%. Authorities have attributed the rise to an aging population and increasing numbers of
young people moving into adult services who request Self Directed Support.
Nine local authorities showed some reduction in applications: Dundee City -20%, East
Dunbartonshire -2%, Glasgow City -1%, Inverclyde -3%, North Ayrshire -14%, Scottish
Borders -5%, South Lanarkshire-17%, Stirling-2%, and West Lothian -14%.
The rate of approved orders for 2015/16 per 100,000 population over 16 is shown in Table
3.1. The Scotland rate was 59.6 (44.4 private and 15.2 local authority) an increase from 55
(42 private and 13 local authority) in 2014/15. South Ayrshire (104), East Ayrshire (98) and
Renfrewshire (97) as last year and Dumfries and Galloway (93) this year, had the highest per
capita rates.
6
Table 3.1
Guardianship orders by local authority area 2015/16
Guardianships granted 2015 - 2016
Local
Authority
Local authority
Aberdeen City
Aberdeenshire
Angus
Argyll and Bute
City of Edinburgh
Clackmannanshire
Dumfries
and
Galloway
Dundee City
East Ayrshire
East Dunbartonshire
East Lothian
East Renfrewshire
Eilean Siar
Falkirk
Fife
Glasgow City
Population
Number
16+**
196,499
213,104
97,247
73,598
422,702
42,331
Private
All
Number
Number
Local
Authority
Rate
per
Population*
Private
All
100K
16+
Local
Private
All
Authority
% change in Rate per 100K 16+
Population (2015-16)
-1
8
7
-2
2
0
2
2
4
16
-4
13
5
3
8
0
31
30
26
21
15
19
49
5
51
59
32
23
93
27
77
80
47
42
142
32
13
10
15
26
12
12
26
28
33
31
22
64
39
38
48
57
34
76
125,994
47
70
117
37
56
93
21
23
44
124,412
100,869
88,416
84,135
74,559
22,722
130,142
303,999
508,808
20
24
3
16
9
5
25
66
52
50
75
36
30
28
12
66
143
319
70
99
39
46
37
17
91
209
371
16
24
3
19
12
22
19
22
10
40
74
41
36
38
53
51
47
63
56
98
44
55
50
75
70
69
73
-6
-2
-2
-3
3
18
-8
6
2
-14
22
0
12
3
35
15
4
-3
-20
20
-2
9
5
53
7
10
-1
7
Guardianships granted 2015 - 2016
Local authority
Highland
Inverclyde
Midlothian
Moray
North Ayrshire
North Lanarkshire
Orkney
Perth and Kinross
Renfrewshire
Scottish Borders
Shetland
South Ayrshire
South Lanarkshire
Stirling
West
Dunbartonshire
West Lothian
SCOTLAND
Population
16+**
Local
Authority
Private
All
Number
Number
Number
Local
Authority
Rate
per
Population*
Private
100K
Local
Private
All
Authority
16+ % change in Rate per
Population (2015-16)
All
100K
16+
194,154
66,534
70,766
79,008
112,934
275,129
18,181
125,311
144,729
95,055
18,946
94,602
261,203
77,320
42
9
11
13
7
39
4
16
37
14
1
22
36
5
96
9
19
30
58
145
14
49
104
25
5
76
131
28
138
18
30
43
65
184
18
65
141
39
6
98
167
33
22
14
16
16
6
14
22
13
26
15
5
23
14
6
49
14
27
38
51
53
77
39
72
26
26
80
50
36
71
27
42
54
58
67
99
52
97
41
32
104
64
43
-4
5
11
7
-11
2
16
0
10
4
5
5
0
-4
8
-7
-3
5
-3
2
38
-1
10
-10
5
11
-17
2
4
-3
8
12
-14
4
55
-1
20
-5
11
16
-17
-2
73,881
11
45
56
15
61
76
4
6
10
143,448
9
31
40
6
22
28
-1
-14
-14
4,460,738
678
1979
2657
15
44
60
2
2
4
*All figures rounded to nearest whole unit
**National Records of Scotland. All Tables: Mid-2015 Population Estimates Scotland (16+ population)
http://www.nrscotland.gov.uk/files//statistics/population-estimates/mid-15-cor-12-13-14/15mype-cahb-all-tab.xlsx (accessed 15/07/2016)
8
Figure 3.1 All guardianship applications over the last seven years – by local authority and
private applications (Number)
2500
Private, 1979
2000
1500
1000
Local authority, 678
500
0
2009-10
2010-11
2011-12
2012-13
2013-14
2014-15
2015-16
Figure 3.2 All guardianship applications over the last seven years – by local authority and
private applications (%)
90%
Private, 74%
80%
70%
60%
50%
40%
Local authority,
26%
30%
20%
10%
0%
2009-10
2010-11
2011-12
2012-13
2013-14
2014-15
2015-16
Private applications accounted for 74% of all applications. This year, total private applications
have increased by 5% to 1979, following last year’s increase of 15% and representing a 117%
increase since 2009/10. Twenty two local authorities showed an increase, five by 50% or
more. However, ten local authorities showed a decrease in private applications. This
highlights the difficulties for local authorities, as their statutory duties under the 2000 Act are
largely in response to a demand led system over which they have no control.
Local authority applications accounted for 26% of all applications. These also increased by
17% to 678, an overall 60% increase since 2009/10. Nineteen authorities showed increases,
nine with increases of 50% or more.
9
The Act requires local authorities to be the default applicant, when appropriate, where there
is no private individual applicant available. Concerns have been reported that local authorities
may be reluctant to do this, and instead encourage families to take the responsibility via a
private application. In many cases this is appropriate, but authorities should not seek to
pressure family members to act if they are unwilling or may find it difficult to fulfil the
responsibilities of a guardian.
10
4. Age and diagnosis of people placed on guardianship
Figure 4.1 All welfare guardianships 2015/16 by primary diagnosis (%)
Mental Illness
3%
Other
2%
Alcohol Related
Brain Disorder
4%
Acquired Brain
Injury
5%
Dementia/
Alzheimer's
Disease
45%
Learning Disability
41%
Figure 4.2 All guardianship applications over the last six years – individuals with dementia
or learning disabilities (%)
60%
Dementia, 45%
50%
40%
Learning
Disability, 41%
30%
20%
10%
0%
2010-11
2011-12
2012-13
2013-14
2014-15
2015-16
The proportion of guardianship applications for people with a learning disability rose to a high
of 45% (1,104) in 2014/15. This year the proportion is lower (41%), although the number has
increased to 1,098. The proportion for people with dementia has returned to its 2013/14 level
(45%) and the number has increased to 1,193.
11
Table 4.1
All welfare guardianships 2015/16 by primary diagnosis and age group
2014-15
Age Group 2015-16
Primary
16-24
25-44
45-64
65+
Total
Diagnosis Total
No.
No. %
No. %
No. %
No. %
No. %
%
1056
43
2
0%
4
1%
59
13% 1128
86% 1193
45%
Dementia
Learning
1104
45 506
96% 314
88% 232
51%
46
3% 1098
41%
Disability
Acquired
122
5
11
2%
23
6%
57
12%
45
3%
136
5%
Brain
Injury
Alcohol
Related
92
4
0
0%
3
1%
61
13%
49
4%
113
4%
Brain
Disorder
Mental
69
3
3
1%
7
2%
36
8%
35
3%
81
3%
Illness
12
0
4
1%
5
1%
12
3%
15
1%
36
1%
Other
Total
2455
100
526
100%
356
100%
457
100%
1318
100%
2657
100%
The above table shows the age at which adults with different causes of impaired capacity
have welfare guardianship applications approved under the provisions of the Adults with
Incapacity (Scotland) Act 2000.
Across all applications, the number of people with dementia has continued to rise in the 65+
age group (1,128 in 2015/16) (the percentage has decreased from a high of 91% in 2011/12
and is 86% this year), whilst the number of people with a learning disability has risen in the
45-64 age group (232 in 2015/16) (the percentage has decreased from a high of 56% in
2013/14 to 51% this year).
Seventy five percent (820) of adults with a learning disability placed on welfare guardianship
in the past year were under the age of 45. Forty six percent (506) were under 25 years of
age.
For people with dementia, 95% (1128) were granted where the adult was over 65 years of
age.
In the 25-44 age group, learning disability was the cause of incapacity in 88% (314) of orders
granted, with adults with acquired brain injury 6% (23) of orders granted. In the 45-64 agegroup, learning disability was the cause of incapacity in 51% (232) of orders. In this age
group, just over a quarter (26%, 118) of adults had incapacity related to alcohol related brain
damage or acquired brain injury.
12
Local authority and private applications and primary cause of incapacity
Table 4.2
Welfare guardianship applications 2015/16 - local authority and private
applications by primary cause of incapacity
Primary diagnosis as percentage of all orders
Local authority
%
Private
%
Acquired Brain Injury
33
5%
103
5%
Alcohol Related Brain Disorder
73
11%
40
2%
Dementia/ Alzheimer's Disease
259
38%
934
47%
Learning Disability
243
36%
855
43%
Mental Illness
54
8%
27
1%
Other
16
2%
20
1%
Total
678
100%
1979
100%
There were differences between local authority and private applications in the primary causes
of incapacity underpinning the application. This year, there were a higher proportion of private
applications (47%) than local authority applications (38%) where dementia was the primary
cause of incapacity. There was an increase of 16% (128) private applications where dementia
was the primary cause of incapacity.
A larger proportion of private guardianship applications (43%) than local authority
applications (36%) was for learning disability, although the gap has narrowed since last year
(48%, 35%). Private learning disability applications have dropped by 5% (-44) and local
authority learning disability applications have risen by 19% (38). For local authority
applications, a larger proportion was for alcohol related brain disorder (11%, 73) and mental
illness (8%, 54) than in private applications (alcohol related brain disorder 2%, 40; and mental
illness 1%, 27).
Table 4.3
Welfare guardianships 2015/16 - apparent renewals in year by local authority and
private applications
Primary Diagnosis
Private
Local Authority
Acquired Brain Injury
Renewals
12
10
22
Alcohol Related Brain Disorder
3
17
20
Dementia/ Alzheimer's Disease
19
18
37
126
74
200
Mental Illness
3
11
14
Other
2
3
5
Total
165
133
298
Learning Disability
13
We also looked at whether the increased use of orders is inflated due to the inclusion of
renewal applications. While it was difficult to retrieve exact data on this, we looked at new
guardianship orders which appeared to be renewals of pre-existing orders. As there were
sometimes gaps and overlaps between the expiry of the old order and the granting of the
new order, this complicated collating the data in respect of renewals to some extent.
In 2015/16, the number of new orders was 2,657, of which 298 were renewals (11%) (Table
4.3). There has therefore been a slight increase in renewal orders from the previous year
(2,455 new orders, of which 10%, 255 were renewals). The number of shorter term orders
being renewed each year will add to the total of new orders, but the adults in question will
have the benefit of having their necessity for the order judicially reviewed.
Of the 2,359 new orders approved for people who had not previously been on guardianship,
a higher proportion (49%, 1,156) were for adults with dementia than for adults with learning
disability (38%, 1,098).
14
5. Duration of guardianship orders
Our interest in this
It is clear from the figures over recent years that progress has been made in addressing the
issue of the length of time for which guardianship orders are granted.
Our concern is that the lack of automatic, periodic judicial scrutiny of approved orders puts
the onus on the individual or another party with an interest to challenge the order - something
which rarely happens. We agree that an indefinite order may be appropriate in the case of,
for example, a very elderly person with advanced dementia, but otherwise we believe it is not
good practice or consistent with the principles of the legislation. Furthermore, we feel there
is the potential for a breach of Article 5 of the European Convention, where indefinite
guardianship is used to authorise deprivation of liberty, since European case law makes clear
the need for regular review. This is discussed further in the Commission’s advice note on
Deprivation of Liberty 1.
What we found
5.1
Variations in indefinite orders by age and diagnosis
Table 5.1 New guardianship orders - orders granted on an indefinite basis (%)
2009-10 2010-11 2011-12 2012-13 2013-14 2014-15 2015-16
All new orders
1336
1521
1766
1929
2115
2455
2657
Indefinite orders
945
960
803
677
684
730
679
Indefinite %
71%
63%
45%
35%
32%
30%
26%
The percentage of new orders granted on an indefinite basis has continued to fall this year
to 26% (679). This is still, however, an area that needs continued monitoring.
As of 31 March 2016, there were 4,800 adults on indefinite welfare guardianship orders, 45%
of the total of extant welfare guardianship orders (10,735) 2. 8% (391) of these adults were
under the age of 25 and 25% (1,194) under 45 years of age.
1Mental
Welfare Commission for Scotland. Advice Note: Deprivation of Liberty (Update 2015)
http://www.mwcscot.org.uk/media/234442/deprivation_of_liberty_final_1.pdf
2 When a person on guardianship dies the Office for Public Guardian should be informed but this may take
time. The OPG then informs the Mental Welfare Commission. Due to delays or missing information our figure
of 10735 extant guardianships may not be fully accurate.
15
Table 5.2
Local authority welfare guardianship applications 2015/16 – indefinite orders as a
percentage of primary cause of incapacity
Local Authority applications
Duration of order (Years)
Primary cause of incapacity
Acquired Brain Injury
Alcohol
Related
Brain
Disorder
Dementia/
Alzheimer's
Disease
Learning Disability
Mental Illness
Other
All Diagnoses
Table 5.3
Indefinite
orders as %
0-3 4-5 >5
Indefinite Totals
of primary
diagnosis
11
16
1
5
33
15%
39
21
5
8
73
11%
91
76
18
74
259
29%
142
27
12
322
73
14
4
204
15
3
13
10
42
110
243
54
16
678
5%
19%
0%
16%
Private welfare guardianship applications 2015/16 – indefinite orders as a
percentage of primary cause of incapacity
Private applications
Duration of order (Years)
Primary cause of incapacity
Acquired Brain Injury
Alcohol
Related
Brain
Disorder
Dementia/
Alzheimer's
Disease
Learning Disability
Mental Illness
Other
All Diagnoses
Indefinite
orders as %
0-3 4-5 >5
Indefinite Totals
of primary
diagnosis
27
39
22
15
103
15%
11
16
4
9
40
23%
125
182
10
7
362
208
415
9
6
693
133
188
6
2
355
468
70
2
5
569
934
855
27
20
1979
50%
8%
7%
25%
29%
The tables above show numbers of approved welfare guardianship orders for local authority
and private applicants, broken down by the identified causes of the adult's incapacity and the
length for which the orders have been granted.
Indefinite orders, in general, were much more likely to be granted where there was a private
guardian. In 2015/16, 29% of all orders granted to private guardians were granted on an
indefinite basis (Table 5.3); for local authorities this stood at 16% (Table 5.2).
16
Forty seven percent (934) of all private guardianships were for individuals with dementia, and
of those, a larger proportion (50%, 468) were indefinite orders. For local authority
applications, 38% (259) were for individuals with dementia, and of those, 29% (74), were
indefinite orders.
Particularly concerning is the seeking and granting of orders on an indefinite basis for young
adults with learning disability – something we have reported on in the past.
Forty three percent (855) of all private guardianships were for individuals with learning
disabilities, and of those, 8% (70) were placed on orders on an indefinite basis. For local
authority applications, a smaller proportion (36%, 243) were for individuals with learning
disabilities, and of those, 5% (13), were indefinite orders.
5.2
Geographic variations in orders approved on an indefinite basis
The granting of welfare guardianship orders on an indefinite basis varied quite dramatically
from one local authority area to the next and in respect of both those granted to private parties
and to chief social work officers (Tables 10.4-10.6).
In Scotland, 16% of all local authority applications and 29% of all private applications were
granted on an indefinite basis.
In two authorities, under 10% were granted on an indefinite basis (North Lanarkshire and
Dumfries and Galloway). Eight authorities had over 50% of local authority applications
granted on an indefinite basis (including Eilean Siar, Moray, Shetland, Renfrewshire,
Aberdeenshire, Stirling, Aberdeen City and Dundee City).
Glasgow City has a smaller number of applications this year (319 compared to 370 in
2014/15). Of these, 30% (111) were granted on an indefinite basis (local authority 19%, 10;
private 32%, 101)
17
Table 5.4
Indefinite orders by primary diagnosis and type of application
Primary diagnosis
Dementia/ Alzheimer's
Disease
Learning Disability
Acquired Brain Injury
Alcohol Related Brain
Disorder
Mental Illness
Other
Total
Local
authority
%
Private
All
applications
%
%
74
67%
468
82%
542
80%
13
5
12%
5%
70
15
12%
3%
83
20
12%
3%
8
7%
9
2%
17
3%
10
9%
0%
110 100%
2
0%
5
1%
569 100%
12
2%
5
1%
679 100%
We looked further into the diagnosis of individuals on indefinite orders (Table 5.4). The large
majority were individuals with dementia (80%); the remainder were a small number of
individuals with acquired brain injury (ABI), alcohol related brain disorder (ARBD), mental
illness or severe learning disabilities/complex needs.
We already prioritise visiting individuals whose capacity is related to ARBD, ABI, learning
disability and mental illness. In future, we may consider a sharper focus on indefinite orders
in relation to the above categories. Where these individuals are receiving registered care, the
care provider will be reviewing their care on a six-monthly basis. It is also the responsibility
of the local authority to ensure these adults are being reviewed and visited by them in line
with statutory timescales. We would encourage local authorities to ensure this is being done.
18
6. Our visits to adults on guardianship 2015 - 2016
Over the past few years, we have sought to visit more people in categories where we have
identified a greater need to intervene. This year, we aimed to target our visits towards adults
with learning disabilities or autistic spectrum disorder (40%). Thirty five percent of our visits
were to people with acquired brain injury or alcohol related brain damage and 25% for
dementia.
Table 6.1
Number of guardianship visits per year
2010-11 2011-12 2012-13 2013-14 2014-15 2015-16
Guardianship visits
379
566
560
593
550
472
This year, we further refined our visit criteria by identifying candidates whose cases may be
more complex, such as being at risk of exploitation or abuse. In 2014/15, we began a pilot
exercise, which allows us to scan and identify key words and phrases from guardianship
application papers 34. Feedback from the pilot allowed us to ‘tune’ the process, which has now
been formally adopted and usefully informs our visit selection.
In 2015/16, we completed 472 guardianship visits, a 14.2% reduction on the number of visits
completed in the previous year. This still represents a 24.5% increase since the 379 in
2010/11 and reflects the growing number of individuals on guardianship orders. In the
Commission, we have reduced our overall target for the number of visits each year from 1,900
to 1,500 and consequently have visited fewer individuals subject to guardianship orders this
year. However, we have still exceeded the 450 set out in the 2015/16 business plan.
The number of guardianship visits to be undertaken in future years is being reviewed as part
of our work to ensure the financial sustainability of the Commission.
Concerns were noted on 128 (27%) of visits. In over half of these cases (60% 77 of 128)
further ongoing casework was required by Commission visiting staff.
Table 6.2 shows the 173 separate issues followed up as a result of these visits by category.
3
Application papers include the application for guardianship and the interlocutor completed by the sheriff
court.
4 Key words include for example ‘restraint’, ‘deprivation’ ‘liberty’ ‘seclusion’.
19
Table 6.2
Issues followed up after guardianship visits in 2015/16
Issue
Number of issues
%
Mobility
9
5%
Communication
3
2%
Legislation
30
17%
Challenging Behaviour
10
6%
Restrictions
12
7%
Medication and consent
23
13%
Activities
21
12%
Finances
15
9%
Placement
29
17%
Environment
15
9%
6
3%
173
100%
Other
Total No. Concerns
Table 6.3
Accommodation of individuals visited by primary diagnosis
Primary diagnosis
Accommodation
Care
Family
Supported
Hospital
Home
Home
Tenancy
Number %
Other Total
Learning
Disability
187
40%
16%
53%
1%
28%
1% 100%
Dementia
108
23%
78%
13%
6%
3%
0% 100%
Autism
Spectrum
disorders
58
12%
14%
52%
2%
29%
3% 100%
Acquired
Brain Injury
43
9%
80%
15%
0%
4%
2% 100%
Alcohol
Related
Brain
Damage
43
9%
48%
42%
4%
6%
0% 100%
Other
33
7%
48%
12%
18%
3%
18% 100%
472 100%
42%
32%
3%
21%
2% 100%
Total
20
Of those adults on guardianship we visited, 42% (198) were resident in care homes and 32%
(153) in the family home (37% in 2014/15). We saw a larger proportion in supported tenancies
this year (21%, 100) and 3% (13) were in hospital at the time of the visit.
Our visitors judged the accommodation to be of good or adequate standard in 94% (443) of
the visits, and the care and treatment was judged as being good or adequate for 96% (451)
of those visited. For just two individuals both accommodation and treatment were marked as
poor.
Adult has moderate learning disability and the more able main carer sibling co-resides.
Both are vulnerable in the community and the local authority is welfare guardian. Our
initial concern was that support was too minimal and the home extremely unkempt.
Both were very resistant to any statutory services visiting them because of their culture
and lifestyle. Part of the support plan was to offer low key support since anything more
would be rejected by them. The multi-agency assessment was that using formal
powers would be traumatic for them and may result in separation. The Commission
reviewed the local authority plan some four months later and the guardianship order
had been allowed to expire, and the support had been increased incrementally and
accepted.
For those residents in care homes, we found that 80% (158 of 198) had a life history available
to staff. This is a smaller proportion of those we visited than last year (84%, 192 of 228) and
the 98% observed in 2011/12. Both Remember I’m Still Me 5 and The Standards of Care for
Dementia in Scotland (2011) 6 highlight the importance of an individual personalised approach
including ‘life story’ work.
This year, we found 14% (65) of adults where the guardianship was seen to be particularly
well managed. There were just two cases we saw as being poorly managed.
Examples of guardianships being well managed include:
Good practice here -guardian has had a discussion with care staff, which is recorded
in the file, about delegation of powers and when she would want staff to consult with
her. She sees [Adult with learning disabilities] every week and he has very regular
contact with a large extended family. Guardian also confirmed that she sees the LA
supervisor, [YY], at least every six months, and that [YY] comes to Adult’s reviews.
5
Remember I’m Still Me. Care Commission and Mental Welfare Commission joint report on the quality of care
for people with dementia living in care homes in Scotland (2009)
http://www.mwcscot.org.uk/media/53179/CC__MWC_joint_report%20Remember%20Still%20Me.pdf
6 Scottish Government (2011) Standards of Care for Dementia in Scotland
http://www.gov.scot/Publications/2011/05/31085414/0
21
A case review had been convened on the morning of my visit and both the social
worker and guardian appeared very happy with the outcome of this. There is good
regular communication between the key worker, social worker and guardian. Guardian
and key worker are clear about the devolved powers, such as those relating to medical
decisions. Staff can and should refer [Adult with dementia] to the doctor if they feel it
is warranted, and accompany her to appointments, but should keep guardian fully
informed about any change to treatment.
Parents liaise closely with day centre and communication is good. Social work are
involved in 6 monthly reviews and have been very supportive during the last year since
[the adult with learning disability]’s presentation has changed and she has been
diagnosed with dementia. Parents have contact numbers for social work, psychology
and community learning disability team and say they always get a prompt and helpful
response if they need to contact them.
Examples of guardianships being poorly managed include:
Local authority was welfare guardian but had not visited the adult in the eight months
since the order was granted. Social worker had little understanding of duties and
responsibilities. No update had been sought by social worker of the care home
placement in the same period. The Commission suggested a review take place ASAP
and reminded of supervisory duties.
Adult had been admitted to hospital from care setting and provider had not informed
the welfare guardian. The adult was in a care home for older people and was
considerably younger in age, expressing boredom, and not enough activities being
offered. Adult expressed desire for sporting pursuits (swimming) but this had not been
offered in care plan. The Commission suggested consideration is given for a more
suitable placement, and possible use of a befriender service.
We noted that the principles of the 2000 Act did not appear to be adhered to in 6% (26) of
cases, which we followed up and will continue to monitor and, in some cases, will visit again
(casework is currently ongoing for thirteen individuals).
In one example, we felt that the individual’s past and present wishes were not being fully
taken into account. There was no clear note in the care plan in relation to the individual’s
desire to take part in active outdoor activity such as walking and access to the countryside.
In another example, we felt that care staff were not well informed about the principles of the
Act and were not clear about the role of guardianship.
Where we noted concerns about any issue relating to the individual’s care or the use of the
legislation, this always resulted in further discussion and correspondence with guardians,
local authority supervisors and service providers.
22
Our concerns include:
•
At least 5% (22) of cases where there were concerns about the individual’s
placement. For a further 3% (15) some reservations had been expressed by the
individual themselves, professional staff or the Commission visitor.
Adult lives in a first floor flat. They said they had difficulty getting up the stairs because
of MS, and would like some support for using the bath, but said they had been put
down for a transfer.
Concerned that she is considerably younger than other residents and as such has no
peer group, she tells me she is bored and that there is not enough for her to do.
•
•
•
•
•
•
•
28% (89 of 319) in residential/supported accommodation where care staff had had
no discussion with the welfare guardian about the potential need to delegate specific
powers to the care staff in certain situations.
In 10% (47 of 472) of cases there was no clear evidence that the guardian had visited
the adult in the last 6 months.
In 29% (92 of 319) of private guardianship cases we found no clear evidence that the
adult had been visited by the local authority supervising officer in the last six months.
41% (130 of 319) private guardians appeared to have had no recent supervisory
visits and for many of these (64%, 83 of 130) there was also no evidence that the
adult had been visited by the local authority supervisor in the past six months.
Nine adults were subject to restraint (6) or seclusion (3) without proper authorisation
in guardianship powers. We would encourage welfare guardians to seek these
powers where necessary, and if not authorised in the order, return to the sheriff to
seek additional powers.
Two adults had restrictions on who was allowed to visit without proper legal
authorisation. This emphasises the need for care staff be very clear about any
delegation of powers from the guardian, and to have a copy of the powers
(interlocutor) for reference in the case file.
There was one case where the S47 certificate was not thought to be appropriate
[Adult] has limited capacity and is not able to engage fully in decisions involving her
medical care. Although there was a section 47 certificate in place it stated “admin of
meds and general issues pertaining to care and welfare issues". This did not appear
to cover the treatment or meds specified. A DNCPR form was also in place which
stated "suspected lung cancer” - when I questioned the staff on this they had no
knowledge that this diagnosis could be a possibility. They were to discuss this issue
with the GP as a matter of urgency and request an updated section 47 certificate.
23
•
29 of 208 guardians where there was a section 47 certificate in place did not appear
to have been consulted about the adult’s medical treatment despite having the power
to consent to medical treatment (Part 5 of the Act) (and of these 13 had no treatment
plan). These situations were primarily when Section 47 certificates or DNACPR 7 were
being considered mainly by GP’s in care homes.
We discussed issues relating to Section 47 and medication in registered settings. The
Commission practitioner advised care staff to contact the GP to produce or update the S47
or treatment plan. For 5% (23) individuals, the Commission practitioner noted this as a
concern for further follow up.
Examples include:
•
•
•
•
Section 47 certificates not being completed when the adult clearly lacks capacity.
Section 47 being completed without discussion with the proxy decision maker.
Section 47 certificates which are in relation to complex care where no treatment plan
is attached.
In some cases the s47 certificate was out of date. Sometimes there was a need for
the S47 certificate to be more readily accessible and visible.
The Code of Practice and Mental Welfare Commission guidance 8 is very clear in relation to
the use of Section 47 certificates. Where an individual does not have the capacity to consent
to the treatment they require, the doctor should formally assess their capacity and on finding
someone incapable of consenting, then complete a certificate. Where this treatment is
complex, they should complete a treatment plan. If this is not done then the treatment given
is unlawful.
If there is a proxy decision maker, namely a welfare guardian or someone acting with a power
of attorney, then the medical practitioner should also discuss the treatment with them. There
is a clear space on the certificate for the doctor to put the name of the proxy decision maker.
Care staff could assist the doctor in identifying the proxy from their knowledge of the adult.
7
DNACPR: Do not attempt cardiac pulmonary resuscitation
Mental Welfare Commission for Scotland (2010) Consent to treatment
http://www.mwcscot.org.uk/media/51774/Consent%20to%20Treatment.pdf
8
24
7. Adults with Incapacity (Scotland) Act 2000, 2015-2016, Section 48
(regulated treatments) & Section 50 (disagreements with proxy).
Table 7.1
Section 48/50 requests and certificates issued by types of treatment
Types of treatment
Section 48/50 Requests
Certificates Issued
Medication to reduce sex drive
20
19*
Electroconvulsive therapy (ECT)
19
14**
Treatment likely to lead to sterilisation
0
0
Termination of pregnancy
0
0
Dispute (Section 50)
1
1
40
34
Total
*Treatment not authorised on one occasion
**Two certificates not issued as patient had capacity; one patient was not physically well enough for ECT; 2 certificates
refused as patient refusing/resisting and MHA recommended
Our interest in this
The Commission has a responsibility under the Adults with Incapacity (Scotland) 2000 Act to
provide independent medical opinions for treatments that are not covered by the general
authority to treat (Section 47). These specific treatments regulated under Section 48 are
noted above. In addition, where there is a welfare proxy with the power to consent to medical
treatment and there is disagreement between them and the treating doctor, the doctor can
request that the Commission arrange an opinion by an appropriate specialist to resolve the
dispute (Section 50 nominated medical practitioner).
What we found
There were 39 requests for Section 48 visits, which is 15% fewer than last year. Of the 19
Electroconvulsive therapy (ECT) requests, one patient was thought to be too physically
unwell at the time of the second opinion doctor visit so this treatment was not approved. Two
certificates were refused for ECT, where the Mental Health Act was thought to be more
appropriate due to patient resistance to treatment. In two other cases, the patients were
judged to have capacity to consent at the time of assessment.
One request for a Section 50 assessment was received in the current reporting year. The
majority of Section 50 disputes relate to the treatment of people with mental illness, learning
disability or related condition. This case was different as the patient was not thought to have
a mental disorder, but was incapable due to inability to communicate because of the
treatment being given for physical illness. The Section 50 assessment was undertaken by a
consultant in anaesthetics and critical care.
25
8. Report on a Survey of Private Welfare Guardians (2016)
Why we undertook this survey
In 2014, we undertook a survey of recently appointed private welfare guardians (within three
to six months of the order being granted)9 . This year, we felt it was important to continue to
find out why private welfare guardians were applying to take on this role. We sought the views
of guardians who had been acting for at least three years (guardianship granted in 2013 or
earlier if the 2013 order was a renewal).
We wanted to find out who had applied for welfare guardianship, what had triggered their
application and whether they believed applying for guardianship had been worthwhile.
In February-March 2016, we sent out a brief questionnaire to the private welfare guardians
of 286 adults with incapacity. We received 90 responses.
Type of order
Figure 8.1 Type of order (n=90)
Not known, 1%
Welfare only,
36%
Welfare and
Finance, 63%
Nearly two-thirds (63%, 57) were both welfare and financial guardians, compared with nearly
three-quarters (72%) in the 2014 survey. 36% (32) were welfare only guardians.
9
Mental Welfare Commission (2015) Report on a Survey of Private Welfare Guardians (2014)
http://www.mwcscot.org.uk/media/221620/report_on_survey_of_private_guardians_2014.pdf
26
Type of incapacity
Figure 8.2 Adult’s diagnosis (n=90)
Learning disability
54%
Dementia
31%
Other
10%
Mental illness
7%
Aquired brain injury
2%
Alcohol related brain disorder
2%
Not answered
1%
0%
10%
20%
30%
40%
50%
60%
Around half (54%, 49) were a guardian for someone with learning disability; nearly a third
(31%, 28) were a guardian for someone with dementia. (More than one diagnosis could be
identified).
In the nine ‘other’ cases, five were for adults with cerebral palsy, a condition which does not
necessarily indicate any cognitive impairment, but is often associated with learning
difficulties.
“The people involved, doctor, social worker, bank have been very helpful and understanding.
It is not as daunting as what I thought it would be”
How did you find out about guardianship?
Social workers and solicitors remained the main source of information about guardianship.
Most guardians said they had first been told about guardianship by a social worker (42%, 41)
or a solicitor (30%, 27).
In only 5% of cases were doctors and nurses identified as the first source of information about
guardianship. Healthcare workers may need to be made more aware of the Adults with
Incapacity (Scotland) Act 2000 and the importance of sharing information about guardianship.
27
Nearly a quarter of guardians for a person with a learning disability told us friends and
relatives, school workers, support workers and other support groups were the first to tell them
about guardianship.
In cases were the guardian initially sought to resolve financial matters but then took out
welfare powers as well (41%, 37), they were more likely to have been informed about
guardianship by a solicitor than others (35%, 13) but social workers were still the biggest
group (46%, 17).
Figure 8.3 How guardian first found out about welfare guardianship (n=90)
Social work
46%
Solicitor
30%
Friend/Relative
12%
Other
6%
Doctor/Nurse
6%
School worker
6%
Support worker
6%
Internet
0%
0%
10%
20%
30%
40%
50%
“My father's case is not a complex one therefore things are going along fine. There were
some issues at the beginning but the Office of the Public Guardian offered good support to
get things up and running”
28
Why did the guardian apply?
“Guardianship is beneficial to protect vulnerable adults and to ensure they have a voice to be
heard”
We asked guardians to select from five statements reflecting reasons for taking out welfare
guardianship. One or more statements could be chosen to reflect the guardian’s own
situation; additional reasons could also be noted. Most selected two to three reasons each.
I applied for Welfare Guardianship because:
(n=90)
No. %
I thought it would be a good idea to have the formal role of guardian
34
38
I needed financial powers, and took welfare powers at the same time
37
41
I was told if I did not then the local authority/social work would
20
22
I was told I had to, if I wanted a say in what happens
55
61
I was told I had to, to apply for and manage SDS/tenancy/ contract etc.
18
20
In the 2014 survey of new guardians, almost a third (32%) agreed with the statement “I
thought it would be a good idea to have the formal role of guardian”. In this year’s 2016 survey
of guardians, 38% agreed with this statement.
The Commission has been concerned that some welfare powers may be being sought, and
some welfare guardians appointed, even though they would not have been seeking welfare
guardianship if there had been no financial trigger for seeking the order. 57 guardians
responding to this survey had both welfare and financial powers. Of these, 58% (33) told us
they agreed with the statement “I needed financial powers, and took welfare powers at the
same time”. Of the 18 of these who had first heard about guardianship from a solicitor, 12
agreed with this statement.
The majority of guardians (welfare only or welfare and financial) agreed with the statements:
“I applied for guardianship because it was necessary to authorise decision making; care
arrangements are very complex” (64%, 58); and “I was told I had to, if I wanted a say in what
happens” (61%, 55). This applied across guardians of adults with different types of incapacity.
“Although I would advise others to apply for welfare guardianship I would do so with caution;
it took 9 months of solicitors etc. and added stress to what was already a difficult time”
29
A Practice Note has been issued by Glasgow Sheriff Court in June 2016 to say that if the
principal reason for submitting a guardianship application seeking financial powers is to
enable the proposed guardian to administer self-directed support or other similar direct
payments, consideration should be given as to whether seeking alternative financial powers
under the Act might be the less restrictive option in relation to the freedom of the adult,
consistent with the purpose of the intervention 10.
In our survey, only one guardian selected “I had to apply for and manage SDS/ tenancy/
contracts/ other benefits” as the sole reason for applying. Seventeen other guardians (19%)
told us this was one of the main reasons for applying for guardianship.
Most of the ten additional comments added to the already listed statements or explained why
more than one was chosen. Guardians mentioned: a feeling of duty or family responsibility;
difficulties they had experienced with care providers; or the need to protect the adult against
exploitation.
“I feel that guardianship process gives me security in knowing I will always be listened to
when I advocate for my son and help him plan his future and make decisions, which he is not
able to make on his own”
Was welfare guardianship worth it?
We asked two questions about the guardian’s experience since the order had been granted;
as this was three years or more ago, guardians would have had sufficient time to form a view
about whether guardianship had been worthwhile.
Over two-thirds (68%, 61) said they had found being welfare guardian helpful; over a quarter
(28%, 25) said it had not made much difference. Only two guardians felt strongly enough to
say it had not been helpful.
Nearly three-quarters (72%, 23) of guardians with welfare powers alone found it helpful, with
just 22% (7) saying it had not made much difference. Of guardians with welfare and financial
powers, two-thirds (65%, 37) found it helpful (with one third (32%, 18) saying it had not made
much difference).
Guardians of people with a diagnosis of dementia overwhelmingly said that it had been
helpful (86%, 24) with only one in ten (11%, 3) saying it had not made much difference.
10 Glasgow AWI Court – practice update #1 – June 2016
http://www.rfpg.org/images/easyblog_images/690/AWI-practice-update---1---June-2016.doc
30
“All parents, and siblings, should be encouraged to become welfare guardians. They are the
people who have only the best interest at heart. Professionals write and speak to suit their
jobs and their bias. They move on and couldn't care less. Families don't!”
The nineteen guardians of people who had neither learning disability nor dementia were
equally divided on whether it helped much or not.
Nine out of 10 guardians (92%, 83) agreed with the statement: “Would you advise others in
your situation to apply for Welfare Guardianship?” Only a few (3%, 3) said they would not.
“I believe that in complex cases the guardianship would be better dealt with by someone
outside the immediate family. This has caused me nothing but stress. I am currently applying
to court to remove myself from guardianship. It has been helpful in terms of his care as I was
able to get him out of hospital (he was there for 8 years unnecessarily)”
31
9. Policy developments affecting welfare guardianships
Mental Health Officer reports
Local authorities have to plan and ensure an adequate mental health officer (MHO) response
in the face of sometimes dramatic changes in demand. This is a statutory duty for local
authorities to deliver within clear timescales (Section 32, 2003 Act) 11. It is clear that there is
mounting workload pressure on local authority mental health officers to keep up with their
duty to provide ‘suitability’ reports 12 of proposed welfare guardians within the statutory time
frame.
We would remind senior managers in local authorities of a sheriff court decision to accept a
private welfare guardianship application that did not have the MHO suitability report, and
order the local authority to provide the report within fourteen days. Some courts might have
decided that this was an incomplete application since the MHO report had not been produced
and lodged. This does not constitute a change in the law but does highlight the possibility of
some courts taking a different interpretation of an application 13.
Supported decision-making
When someone has impaired capacity, it is important to remember that this does not
necessarily impact on all of their decision-making abilities. It is crucial that the person is
supported to make full use of their abilities in shaping their care and support. Careful
consideration must be given to a person’s capacity at all stages of the process to properly
inform judgments about the extent to which they are able to make decisions about their own
needs and support. This is a very important aspect of working alongside someone who needs
support to express their preference. In 2016, the Commission and Professor Jill Stavert of
Napier University worked together to produce a Guide to Supported Decision Making
(SDM) 14. This is the first document that sets out where SDM comes from and seeks to show
how it relates to Scots law and practice.
Supported decision-making is a key requirement of the UN Convention on the Rights of
Persons with Disabilities. Article 12 of the Convention obliges states to ‘provide access by
persons with disabilities to the support they may require in exercising their legal capacity’. It
is likely that there will be a formal review shortly of the UK’s compliance with the Convention.
In advance of this, the Essex Autonomy Project (EAP) undertook a detailed review 15 of the
compliance with the Convention of UK incapacity law, including the Adults with Incapacity
(Scotland) Act.
11
Mental Health (Care and Treatment)(Scotland) Act 2003
Adult with Incapacity (Scotland) Act 2000
13
Hamilton Sheriff Court SS & MM, Applicants 25.09.15/Mental Capacity Law Newsletter Feb 2016:Issue 62
14 Due for publication in October 2016
15 The Essex Autonomy Project. Three Jurisdictions Report. Towards Compliance with CRPD Art. 12
in Capacity/Incapacity Legislation across the UK http://autonomy.essex.ac.uk/eap-three-jurisdictions-report
12
32
The EAP review found that changes will need to be made to the Act to make it fully compliant
with the Convention. The Commission hopes that these changes will be taken forward by the
government as part of the review of the 2000 Act prompted by the Cheshire West decision.
In the meantime, there are some key points arising from the SDM guidance and the work of
the Essex Autonomy Project which should be borne in mind by anyone involved in welfare
guardianship:
•
•
•
Guardianship is only justified if it can be established that, even with all reasonable
support, the person cannot make relevant decisions for themselves, and
guardianship powers should be limited to those decisions the person genuinely
cannot make, even with support.
The fact that support is not available or has not been tried should not be a
justification for guardianship.
It is not always necessary or right to give effect to what a person says they want,
but the starting point for any decision about a person’s welfare should be respect
for their rights, will and preference. Contravening the person’s known will and
preference is justifiable only if it is a proportional and necessary means of
protecting the full range of the person’s rights, freedoms and interests.
Concerns have been expressed about the involvement of the adult in the process of applying
for guardianship. The Act requires that account must be taken of the present and past wishes
and feelings of the adult, and the UNCRPD reinforces this. It should be the norm for the adult
to be supported to express views on any application for guardianship and to participate in the
hearing, so far as they are able and wish to do so.
We welcome the recent practice guidance for the Sheriffdom of Lothian and Borders 16 that
applications:
“must include averments as to the present and past wishes and feelings of the adult
so far as they can be ascertained. If it is not possible to ascertain them, the writ must
include averments (1) as to why this is not possible and (2) as to the steps taken, if
any, (including any assistance and/or support provided) with a view to ascertaining
them”
16 Sheriffdom of Lothian and Borders, Practice Note No 1, 2016. Applications under the Adults with Incapacity
(Scotland) Act 2000
33
Delayed discharge pilot
For some years there has been considerable interest in the number of patients who cannot
be discharged due to their incapacity, and who require welfare guardianship orders. These
patients are medically fit for discharge, but lack capacity to agree to be discharged, to a care
home, and require a court appointed guardian to make these decisions. We were pleased to
learn that the Scottish Government has plans to run a pilot in Lothian to expedite guardianship
applications. It aims to review, test and develop good discharge planning procedures and
practices with a view to help inform the development of national guidance 17.
17
Lothian Guardianship Pilot. Brief provided by the Health and Social Care Directorate, Scottish Government
09/08/2016. At the June Delayed Discharge census there were 231 patients delayed across Scotland waiting
for a Guardian to be appointed. These patients are medically fit for discharge, but lack capacity to agree to be
discharged, and the move to a care home, and require a court appointed Guardian to make these decisions.
This delay results in a poor outcome for the individual, many of who are delayed for several months. At
February in Lothian eight patients waited over three months, and three waited over six months.
34
10.
Appendix of tables
Table 10.1
Welfare guardianship applications 2015/16 – All orders by local authority and primary cause of incapacity
All orders
Acquired
Brain Injury
%
Alcohol
Related
Brain
Disorder
%
Dementia/
Alzheimer's
Disease
%
Learning
Disability
%
Mental
Illness
%
Other
%
Total
%
Aberdeen City
2
3%
3
4%
31
40%
35
45%
5
6%
1
1%
77
100%
Aberdeenshire
1
1%
4
5%
21
26%
50
63%
3
4%
1
1%
80
100%
Angus
2
4%
3
6%
25
53%
13
28%
2
4%
2
4%
47
100%
Argyll and Bute
1
2%
0%
21
50%
18
43%
2
5%
0%
42
100%
City of Edinburgh
6
4%
5
4%
58
41%
62
44%
6
4%
4%
142
100%
0%
3
9%
13
41%
16
50%
0%
32
100%
5
4%
3
3%
47
40%
58
50%
3
3%
1
1%
117
100%
3
4%
1
1%
34
49%
21
30%
5
7%
6
9%
70
100%
East Ayrshire
East
Dunbartonshire
East Lothian
4
4%
3
3%
43
43%
49
49%
0%
99
100%
1
3%
1
3%
22
56%
13
33%
3%
39
100%
1
2%
3
7%
19
41%
23
50%
0%
0%
46
100%
East Renfrewshire
3
8%
1
3%
13
35%
20
54%
0%
0%
37
100%
0%
1
6%
13
76%
3
18%
0%
0%
17
100%
6
7%
2
2%
33
36%
48
53%
2
2%
0%
91
100%
Fife
13
6%
7
3%
93
44%
81
39%
10
5%
5
2%
209
100%
Glasgow City
20
5%
20
5%
182
49%
135
36%
11
3%
3
1%
371
100%
Highland
2
1%
6
4%
70
51%
53
38%
4
3%
3
2%
138
100%
Inverclyde
3
17%
1
6%
7
39%
6
33%
1
6%
0%
18
100%
Midlothian
1
3%
2
7%
12
40%
13
43%
2
7%
0%
30
100%
Clackmannanshire
Dumfries
and
Galloway
Dundee City
Eilean Siar
Falkirk
35
5
0%
0%
1
3%
1
All orders
Acquired
Brain Injury
%
Alcohol
Related
Brain
Disorder
%
Dementia/
Alzheimer's
Disease
%
Learning
Disability
%
Mental
Illness
%
Moray
1
2%
1
2%
22
51%
18
42%
1
2%
North Ayrshire
8
12%
3
5%
28
43%
22
34%
2
3%
13
7%
10
5%
66
36%
87
47%
5
3%
Orkney
2
11%
0%
4
22%
10
56%
2
Perth and Kinross
6
9%
4
6%
26
40%
26
40%
12
9%
4
3%
81
57%
40
2
5%
1
3%
6
15%
0%
3
North Lanarkshire
Renfrewshire
Scottish Borders
Shetland
0%
Other
%
Total
%
0%
43
100%
2
3%
65
100%
3
2%
184
100%
11%
0%
18
100%
3
5%
0%
65
100%
28%
3
2%
1%
141
100%
28
72%
2
5%
0%
39
100%
50%
3
50%
0%
0%
6
100%
0%
98
100%
1%
167
100%
1
South Ayrshire
5
5%
6
6%
46
47%
39
40%
2
2%
South Lanarkshire
8
5%
14
8%
74
44%
67
40%
3
2%
0%
1
3%
17
52%
14
42%
1
3%
0%
33
100%
0%
56
100%
Stirling
West
Dunbartonshire
West Lothian
Scotland
1
2
4%
0%
44
79%
10
18%
0%
3
8%
0%
19
48%
17
43%
0%
1
3%
40
100%
136
5%
4%
1193
45%
1098
41%
3%
36
1%
2657
100%
113
36
81
Table 10.2
Welfare guardianship applications 2015/16 – Local authority orders by local authority and primary cause of incapacity
4%
Alcohol
Related
Brain
Disorder
2
Aberdeenshire
0%
Angus
0%
Argyll and Bute
0%
Local
orders
authority
Aberdeen City
City of Edinburgh
Acquired
Brain
Injury
1
3
Clackmannanshire
%
Dementia/
Alzheimer's
Disease
%
Learning
Disability
Mental
Illness
%
%
Other
10
38%
5
19%
0%
26
100%
3
14%
4
19%
11
52%
3
14%
21
100%
3
20%
6
40%
3
20%
1
7%
15
100%
0%
9
47%
9
47%
1
5%
0%
13
%
0%
19
100%
4
8%
8%
49
100%
0%
5
100%
47
100%
20
100%
0%
2%
15
%
0%
24
100%
33%
0%
3
100%
2
22
45%
11
22%
0%
1
20%
3
60%
1
20%
2
4%
11
23%
29
62%
2
4%
1
0%
7
35%
5
25%
4
20%
3
8%
9
38%
11
46%
0%
1
33%
1
33%
Dundee City
1
5%
East Ayrshire
2
8%
%
31%
10%
4%
Total
8
5
2
%
8%
6%
Dumfries and Galloway
East Dunbartonshire
%
2
0%
4
0%
1
East Lothian
1
6%
2
13%
6
38%
7
44%
0%
0%
16
100%
East Renfrewshire
1
11%
1
11%
3
33%
4
44%
0%
0%
9
100%
0%
1
20%
4
80%
0%
0%
0%
5
100%
0%
25
100%
Eilean Siar
Falkirk
1
4%
1
4%
8
32%
13
52%
2
8%
Fife
3
5%
7
11%
28
42%
22
33%
5
8%
1
2%
66
100%
Glasgow City
5
10%
8
15%
20
38%
14
27%
3
6%
2
4%
52
100%
Highland
1
2%
5
12%
17
40%
17
40%
2
5%
0%
42
100%
Inverclyde
1
11%
1
11%
5
56%
1
11%
1
11%
0%
9
100%
Midlothian
0%
0%
3
27%
6
55%
2
18%
0%
11
100%
Moray
0%
0%
7
54%
5
38%
1
8%
0%
13
100%
37
Local
orders
authority
Acquired
Brain
Injury
Alcohol
Related
Brain
Disorder
%
%
North Ayrshire
1
14%
2
29%
North Lanarkshire
3
8%
7
18%
Orkney
1
25%
Perth and Kinross
2
13%
Renfrewshire
1
Scottish Borders
1
Shetland
Dementia/
Alzheimer's
Disease
Learning
Disability
%
Mental
Illness
%
%
Other
Total
%
7
100%
10%
14
%
0%
39
100%
1
25%
0%
4
100%
19%
1
6%
0%
16
100%
12
32%
2
5%
3%
37
100%
9
64%
2
14%
0%
14
100%
0%
0%
1
100%
0%
1
14%
2
29%
10
26%
15
38%
4
0%
1
25%
1
25%
3
19%
7
44%
3
3%
3
8%
18
49%
7%
1
7%
1
7%
0%
1
100%
0%
%
0%
1
1
South Ayrshire
1
5%
4
18%
11
50%
4
18%
2
9%
0%
22
100%
South Lanarkshire
1
3%
8
22%
15
42%
10
28%
2
6%
0%
36
100%
Stirling
0%
1
20%
2
40%
1
20%
1
20%
0%
5
100%
West Dunbartonshire
0%
0%
10
91%
1
9%
0%
11
100%
West Lothian
0%
0%
2
22%
6
67%
0%
1
9
100%
11%
259
38%
243
36%
8%
16
0%
11
%
2%
678
100%
Scotland
33
5%
73
38
54
Table 10.3
Welfare guardianship applications 2015/16 – Private orders by local authority and primary cause of incapacity
Private orders
Acquired
Brain Injury
%
Alcohol
Related
Brain
Disorder
%
Dementia/
Alzheimer's
Disease
%
Learning
Disability
%
Mental
Illness
%
Other
%
Total
%
Aberdeen City
1
2%
1
2%
23
45%
25
49%
0%
1
2%
51
100%
Aberdeenshire
1
2%
1
2%
17
29%
39
66%
0%
1
2%
59
100%
Angus
2
6%
0%
19
59%
10
31%
1
3%
0%
32
100%
Argyll and Bute
1
4%
0%
12
52%
9
39%
1
4%
0%
23
100%
City of Edinburgh
3
3%
0%
36
39%
51
55%
2
2%
1%
93
100%
0%
0%
27
100%
0%
70
100%
6%
50
100%
0%
75
100%
3%
36
100%
Clackmannanshire
Dumfries
and
Galloway
Dundee City
1
0%
2
7%
10
37%
15
56%
3
4%
1
1%
36
51%
29
41%
1
1%
2
4%
1
2%
27
54%
16
32%
1
2%
East Ayrshire
East
Dunbartonshire
East Lothian
2
3%
1
1%
34
45%
38
51%
0%
1
3%
1
3%
21
58%
12
33%
0%
0%
1
3%
13
43%
16
53%
0%
0%
30
100%
East Renfrewshire
2
7%
0%
10
36%
16
57%
0%
0%
28
100%
0%
0%
9
75%
3
25%
0%
0%
12
100%
2%
25
38%
35
53%
0%
0%
66
100%
0%
65
45%
59
41%
5
3%
4
3%
143
100%
Eilean Siar
Falkirk
1
3
1
5
8%
Fife
10
7%
Glasgow City
15
5%
12
4%
162
51%
121
38%
8
3%
1
0%
319
100%
Highland
1
1%
1
1%
53
55%
36
38%
2
2%
3
3%
96
100%
Inverclyde
2
22%
0%
2
22%
5
56%
0%
0%
9
100%
Midlothian
1
5%
2
11%
9
47%
7
37%
0%
0%
19
100%
Moray
1
3%
1
3%
15
50%
13
43%
0%
0%
30
100%
39
Private orders
North Ayrshire
Acquired
Brain Injury
%
Alcohol
Related
Brain
Disorder
%
Dementia/
Alzheimer's
Disease
%
Learning
Disability
%
7
12%
1
2%
28
48%
21
36%
10
7%
3
2%
56
39%
72
50%
Orkney
1
7%
0%
3
21%
9
Perth and Kinross
4
8%
1
2%
19
39%
11
11%
1
1%
63
1
4%
0%
0%
North Lanarkshire
Renfrewshire
Scottish Borders
Shetland
Mental
Illness
%
Other
%
Total
%
0%
1
2%
58
100%
1
1%
3
2%
145
100%
64%
1
7%
0%
14
100%
23
47%
2
4%
0%
49
100%
61%
28
27%
1
1%
0%
104
100%
5
20%
19
76%
0%
0%
25
100%
0%
2
40%
3
60%
0%
0%
5
100%
0%
0%
76
100%
1%
131
100%
South Ayrshire
4
5%
2
3%
35
46%
35
46%
South Lanarkshire
7
5%
6
5%
59
45%
57
44%
0%
0%
15
54%
13
46%
0%
0%
28
100%
2
4%
0%
34
76%
9
20%
0%
0%
45
100%
3
10%
0%
17
55%
11
35%
0%
0%
31
100%
103
5%
2%
934
47%
855
43%
1%
1979
100%
Stirling
West
Dunbartonshire
West Lothian
Scotland
40
40
1
27
1%
1%
1
20
Table 10.4
Duration of orders granted to local authorities 2015/16
Local Authority
Duration of Orders in Years
4 to 5
Aberdeen City
6
12
8
26
31%
Aberdeenshire
9
3
9
21
43%
Angus
12
2
1
15
7%
Argyll and Bute
14
2
1
2
19
11%
City of Edinburgh
37
8
1
3
49
6%
1
1
3
5
60%
43
4
47
0%
Dundee City
6
5
5
20
25%
East Ayrshire
16
7
1
24
4%
2
3
67%
16
0%
1
9
11%
1
3
5
60%
Clackmannanshire
Dumfries and Galloway
East Dunbartonshire
1
East Lothian
9
6
East Renfrewshire
1
7
Eilean Siar
1
Over 5
Indefinite
as % of
total
0 to 3
4
Indefinite Total
1
Falkirk
15
2
3
5
25
20%
Fife
28
21
10
7
66
11%
Glasgow City
16
23
3
10
52
19%
Highland
15
16
1
10
42
24%
Inverclyde
6
3
9
0%
Midlothian
4
6
11
0%
Moray
4
2
7
13
54%
North Ayrshire
5
2
7
29%
2
39
5%
4
0%
North Lanarkshire
25
Orkney
Perth and Kinross
Renfrewshire
Scottish Borders
1
12
4
2
6
5
3
16
19%
11
4
3
19
37
51%
4
7
2
1
14
7%
1
1
100%
22
0%
1
36
3%
Shetland
South Ayrshire
11
11
South Lanarkshire
11
19
Stirling
1
2
2
5
40%
West Dunbartonshire
2
8
1
11
9%
West Lothian
6
1
1
1
9
11%
322
204
42
110
678
16%
Scotland
41
5
Table 10.5
Duration of orders granted to private individuals 2015/16
Private
Duration of Orders in Years
0 to 3
4 to 5
Over 5
Indefinite
as % of
total
Indefinite Total
Aberdeen City
3
19
2
27
51
53%
Aberdeenshire
4
14
7
34
59
58%
Angus
5
16
4
7
32
22%
Argyll and Bute
7
8
5
3
23
13%
20
36
21
16
93
17%
2
10
6
9
27
33%
51
14
3
2
70
3%
Dundee City
2
3
19
26
50
52%
East Ayrshire
17
23
19
16
75
21%
East Dunbartonshire
7
11
7
11
36
31%
East Lothian
7
15
3
5
30
17%
East Renfrewshire
2
11
2
13
28
46%
1
11
12
92%
City of Edinburgh
Clackmannanshire
Dumfries and Galloway
Eilean Siar
Falkirk
4
37
7
18
66
27%
Fife
25
40
45
33
143
23%
Glasgow City
35
143
40
101
319
32%
Highland
15
29
16
36
96
38%
Inverclyde
6
3
9
0%
Midlothian
1
8
2
8
19
42%
Moray
1
5
5
19
30
63%
North Ayrshire
9
23
16
10
58
17%
51
61
21
12
145
8%
Orkney
1
9
2
2
14
14%
Perth and Kinross
5
4
26
14
49
29%
17
16
10
61
104
59%
4
11
7
3
25
12%
3
5
60%
North Lanarkshire
Renfrewshire
Scottish Borders
Shetland
South Ayrshire
2
40
19
5
12
76
16%
South Lanarkshire
9
62
34
26
131
20%
Stirling
4
8
1
15
28
54%
West Dunbartonshire
4
18
12
11
45
24%
West Lothian
4
15
7
5
31
16%
362
693
355
569
1979
29%
Scotland
42
Table 10.6
Duration of all orders granted 2015/16
All
Duration of Orders in Years
0 to 3
4 to 5
Over 5
Indefinite
as % of
total
Indefinite Total
Aberdeen City
9
31
2
35
77
45%
Aberdeenshire
13
17
7
43
80
54%
Angus
17
18
4
8
47
17%
Argyll and Bute
21
10
6
5
42
12%
City of Edinburgh
57
44
22
19
142
13%
3
11
6
12
32
38%
94
18
3
2
117
2%
Dundee City
8
8
23
31
70
44%
East Ayrshire
33
30
19
17
99
17%
8
11
7
13
39
33%
16
21
4
5
46
11%
East Renfrewshire
3
18
2
14
37
38%
Eilean Siar
1
2
14
17
82%
Clackmannanshire
Dumfries and Galloway
East Dunbartonshire
East Lothian
Falkirk
19
39
10
23
91
25%
Fife
53
61
55
40
209
19%
Glasgow City
51
166
43
111
371
30%
Highland
30
45
17
46
138
33%
Inverclyde
12
6
18
0%
Midlothian
5
14
3
8
30
27%
Moray
5
7
5
26
43
60%
North Ayrshire
14
23
16
12
65
18%
North Lanarkshire
76
73
21
14
184
8%
Orkney
1
13
2
2
18
11%
Perth and Kinross
7
10
31
17
65
26%
28
20
13
80
141
57%
8
18
9
4
39
10%
4
6
67%
Renfrewshire
Scottish Borders
Shetland
2
South Ayrshire
51
30
5
12
98
12%
South Lanarkshire
20
81
39
27
167
16%
Stirling
5
10
1
17
33
52%
West Dunbartonshire
6
26
12
12
56
21%
10
16
8
6
40
15%
684
897
397
679
2657
26%
West Lothian
Scotland
43
Thistle House
91 Haymarket Terrace
Edinburgh
EH12 5HE
Tel: 0131 313 8777
Fax: 0131 313 8778
Service user and carer
freephone: 0800 389 6809
[email protected]
www.mwcscot.org.uk
Mental Welfare Commission ( SEP 16 )